Calcutta High Court (Appellete Side)
Kavita Jagatramka And Another vs Union Of India And Others on 17 May, 2024
17th May,
2024
(AK)
30
W.P.A 3607 of 2021
IA No: CAN 3 of 2023
CAN 4 of 2023
CAN 6 of 2023
Kavita Jagatramka and another
Vs.
Union of India and others
Mr. Suddhasatva Banerjee
Mr. Arindam Paul
Mr. Abhishek Kabir
...for the petitioners.
Mr. Vipul Kundalia
Mr. Tapan Bhanja
Mr. Soumava Ghosh
Ms. Isabella Pal
Ms. Swagata Roy
...for the SFIO.
Mr. A. Asthana
Mr. R. Dutt
Mr. S. Bhattacharya
...for the respondent no.7.
IN Re: CAN 3 of 2023 CAN 4 of 2023
1. CAN 3 of 2023 and CAN 4 of 2023 are adjourned till after the oncoming summer vacation.
CAN 6 of 2024
2. CAN 6 of 2024 is being taken up for hearing.
3. Learned counsel appearing for the SFIO seeks to use a short affidavit. However, the matter having 2 been substantially heard on the merits of CAN 6 of 2024, such prayer is refused.
4. Moreover, the dispute is not on facts but on a pure question of law.
5. The petitioners in the said application seek a copy of the report prepared by the Serious Fraud Investigation Office (SFIO) upon completion of investigation with regard to the company of who is the petitioners are Directors.
6. Learned counsel submits that the petitioners are interested parties and as such ought to be furnished copies of such report immediately.
7. Learned counsel appearing for the respondent authorities contend that the report has been sent to the Central Government under sub-Section (14) of Section 212 of the Companies Act, 2013 (hereinafter referred to as, "the 2013 Act") and only upon the Central Government forming an opinion and passing a direction to initiate prosecution on the same need a copy of the same be handed over to interested parties.
8. Moreover, sub-Section (13) of Section 212, it is argued, contemplates the copy to be given only to a "person concerned".
9. It is argued that the petitioners are not persons concerned, as the investigation is going on against the Company.
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10. Moreover, unless an opinion is formed under sub-
Section (14) by the Central Government, it cannot be ascertained whether the petitioners are indicted in the complaint.
11. Learned counsel for the respondents also argues that the copy of the investigation report can only be handed over upon an order being passed on an application by the concerned persons to the „court‟.
12. The definition of "court" in the present context, would be found in Section 2(29)(iv) of the 2013 Act.
13. Thus, in the absence of any application before the Special Court established under Section 435, it is argued that the report ought not to be directed to be handed over to the petitioners.
14. Heard learned counsel for the parties.
15. Insofar as the first objection is concerned, it is clear that since the investigation was undertaken against the Company of which the petitioners are Directors and the petitioners were also involved in the investigation at all stages, the petitioners are definitely "persons concerned" under the purview of sub-Section (13) of Section 212 of the 2013 Act.
16. Insofar as the stage at which the report can be sought, there is nothing in Section 212 which prevents a "person concerned" to ask for a report even prior to an opinion being formed by the Central Government.
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17. Such position is further bolstered by the arrangement of the several sub-Sections of Section
212.
18. Whereas sub-Section (12) speaks about completion of investigation, upon which the SFIO is to submit the investigation report to the Central Government, sub-Section (13) contemplates a copy of the said investigation report to be obtained by any person concerned.
19. The stage of acceptance of the report by the Central Government only comes in sub-Section (14) which stipulates that on receipt of the investigation report, the Central Government may after examination of the same (and after taking such legal advice as it may think fit) direct the SFIO to initiate prosecution.
20. However, sub-Section (13) is independent and irrespective of any opinion being formed by the Central Government.
21. Sub-Section (13), which (obviously) comes before sub-Section (14), thus, clearly contemplates a copy of the investigation report being obtained by a person concerned immediately after the same is submitted to the Central Government by the SFIO.
22. Insofar as the third objection is concerned, the same cannot be accepted by this court. 5
23. Although learned counsel for the respondents have placed reliance on sub-Section (15) of Section 212 to indicate the nature of the report, this court is not convinced on such aspect.
24. Sub-Section (15) merely provides that the investigation report filed in the Special Court for framing of charges shall be deemed to be a report filed by a police officer under Section 173 of the Code of Criminal Procedure.
25. However, the present case is still at a stage prior to submission of the report to the Special Court.
26. In fact, the Central Government is yet to accept the report or form an opinion to initiate prosecution against the Company and its officers or employees on the basis of such report.
27. Thus, at the present stage, it cannot be said that the Special Court as contemplated in Section 435 of the 2013 Act is in seisin of the matter. It would be absolutely premature to hold so.
28. As a logical corollary of the above reasoning, it is Clause (i) and not Clause (iv) of sub-Section (29) of Section 2 of the Companies Act which is applicable in the present case.
29. The Special Court established under Section 435 having not yet been approached, in fact no opinion having been formed by the Central Government even to start prosecution, the expression "court" in 6 sub-Section (12) of Section 212 in the present context cannot be taking to be the Special Court.
30. The default provision of sub-Section (29) (i) of Section 2 applies, which provides that "Court" means the High court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court under sub-clause (ii).
31. In such view of the matter and it having been held that the petitioners being officers or employees of the Company under investigation as stipulated in sub-Section (14) of Section 212 are persons concerned, it is for the SFIO to furnish a copy of the investigation report immediately to the petitioners under Section 212 (13) of the Companies Act, 2013.
32. As regards the other prayer made in the said application, the SFIO is, in principle, not opposed to preserving the CCTV footage of the concerned incidents.
33. It is in fact submitted by learned counsel for the SFIO that following the relevant judgment of the Apex Court, such footages are, by default, preserved.
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34. In any event, since the CCTV footage might acquire relevance if the matter reaches the Special Court, it is for the SFIO in any event to preserve the same.
35. Accordingly, CAN 6 of 2024 is disposed of by directing the SFIO to furnish a copy of the investigation report-in-question to the petitioners at the earliest, preferably within three weeks from date.
36. The SFIO shall also preserve the CCTV footage in connection with the concerned investigation during pendency of the writ petition or until further order, whichever is earlier.
(Sabyasachi Bhattacharyya, J.)